# FILED
December 21, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE SEPTEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 01 C01-9801-CC-00043 ) vs. ) Williamson County ) BRIAN ROBERSON, ) Honorable Donald P. Harris, Judge ) Appellant. ) (Sale of Cocaine) ) FOR THE APPELLANT: FOR THE A PPELLEE: TRIPPE S. FRIED JOHN KNOX WALKUP 302 Third Ave. South Attorney General & R eporter Franklin, TN 37064 LISA A. NAYLOR Assistant At

torney General Criminal Justice Division 425 Fifth Avenu e North Nashvill e, TN 37243 JOSEPH D. BAUGH, JR. Distric

t Attorney General 21st Judicial District Williamson County Courthouse

P.O. Box 937 F ranklin, TN 37065-0937

ROBBIE BEAL Assistant D istrict Attorney P.O. Box 937 F ranklin, TN 37065-0937

OPINION FILED: _____________ AFFIRMED
JAMES CURWOOD

WITT, JR., JUDGE

Opinion2 A Williamson County Circuit Cour t jury convicted

the defendant, Brian Roberson, of a Class B felony sale of cocaine under Tennessee Code Annotated section 39-17-417 and recommended afine of $15,000. The trial judge sentenced him to nine years inc

arce ration with the Department of Correction as a Range I offenderand imposed a fine of $2,000. In this rule 3 appeal, the defendant r aises four issues: 1. Whether the evidence was sufficient to s upport the conviction;

2. Wh ether the trial court er red in admitting into ev idence the defendant’s tape-recorded statemen t pertaining to his other indictments;

3. Whether the trial court erred in allowing a state witness t o test ify as to the truthfulness of the state’s confidential informant; and 4. Whether the trial court erred i n ruling that the state could impeach the defendant as a witness, should he have testified, thr ough admitting proof

of a recentconviction in a drug case. After

a review of the

case, we affirm the judgment of the trial court.

Chris Clausi, an officer with the Franklin Police Depar tment, testified that he and officer

John Brown conducted an undercover drug-purchase operation in Williamson County on October 8, 1996. The officers fitted a “wire” on Carl Hayes, a private citizen who agreed to serv e as an undercover operati ve to buy drugs.

Mr. Hayes went to a str eet location in Franklin . He testi fied that he
was not looking foranyone in particular but rather for anyone who c ame along who he thought would sell hi m crack cocaine. He testi fied he saw the defendant driving byin a car. Hayes “flagged him down” and got into the c ar. The defendant asked Hayes if he was “wired up ,” but Hayes denied that he wore a wir

e. The defendant spotted the car in which Officer Clausi was sitting and expressed his fear that the police might be survei lling Hayes and hims elf.

The audiotape of the radio-transmitte d conversation was garbled and3

difficult to understand. Clausi testified the contempor aneous transmission whic h he had heard from his car

was easier to understan d than the version recor ded on the tape. He intermittently pl ayed portions of the tape and testi fied that at one point the defendant said to Hayes, “I can’t take no more indictments or something l ike that.” A little later, the tape r eflects that the defendant said, “I can ’t afford th is s _ _ _ man.” The defendant with Hayes in the car drove away, passing in close proximity to Clausi’s parked car. Clausi testified that he positively identified the defendant as the person who drove the vehicle.
Hayes testifi ed that, despite the defendant’s reser vations abou t sellin g drugs to him, he purchased several rocks of crack cocaine from the defendant with the $80 furnished to him by the officers. After the sale he met with Officers Clausi and Brown.

Brown testified that he s ear ched Hayes and obtained the coc aine which Brown inserted in a plastic envelope. The par ties stipulated that the

material inside the envelope was duly delivered to the Tennessee Bur ea u of Investigation lab for chemical analysis and then returned to

the Franklin Police De partment in the form in which it was

presented in court as an ex hibit to Brown’ s testimon y. Glen Everett, a forensic chemist for the TBI lab, testified that the mater ial was .6

grams of cocaine base.

During the state’s direct examination, Carl Hay es testified that at the time of his testimony he was incarcerated in the Williamson County jail andthat the incarceration related back to a 1995 conviction for sellin g cocaine . During crossexamination, Hayestestified that he had failed a drug screen in the spr

ing of 1997,
a few months prior to the defendant’s Au gus t 1997 trial. He testified th at he had been paid by the police department for some of his undercoveractivities. On crossexamination, he admitted that he participated in the sting operation bec ause he “got into trouble with the law ” and that he hoped to help hi mself by assisting as an4

undercover

operative. Hayes ad mitted that he may be the father of a female child and that he paid no support for such chil d. He further admitted that he knew how to buy drugs, and he testified on cross-examination that he wasnot sure if he was paid for the October 8, 1996 activ ity.
During Brown’s testimony,the defendant objected when the state asked Brown on direct examinati on whether Brown beli eved Mr. Hayes to be truthful. The objection was over ruled, and Brown testified that Hayes had always been truthful with the Frank lin Police Department.

After the state rested, the trial court heard arguments concerning the state’s proposed us e of the defendant’s prior drug conv iction as impeachment evidence had the defendant testified. The court ruled that the probative value of the prior conviction outweighed any unfair prejudice and that the state would be allowed to impeach the defendant with this conviction. The defendant offered no proof.

I. Sufficiency of the Evidence .

The defendant challenges the sufficiency of the evidence. When an accused challenges the sufficiency of the co nvicting evidence, this court must review the record to determine if the ev ide nc e adduced at trial is sufficient “to support the findi ng by t he trie r of fact o f g uilt bey ond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt based upon direct evidence, circum stantial evidence, or a combination of direct and circumstantial evidence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

In determining the sufficiency of the convicting evidence, this court does not re-weigh or r

e-evaluate the evidence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim

. App. 1990). Nor may this court substitute its inferences for those drawn by the trier of fact from cir cumstantial evidence. Liakas v. State , 199 Tenn.5

298, 305, 286 S.W.2d 856 , 859 (1956). To the contrary , this cou rt is required to afford the state the strongest legitimate view of the evidence c ontained in the record
as well as all reasonable and legiti mate inferences which may be drawn from th e evidence. State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978).

Questions concerning the credibi lity of the witnesses , the weight and value to be given the evidence, as well as all factual issues raised by the evidence
are resolved by the tri er of fact, not this court. Id . at 835. In Sta te v. Grac e , 493 S.W.2d 474, 476 (Tenn. 1973), ou r supreme court said , “A guilty ver dict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all confli cts in favor of the theory of the state.”

Because a verdict of

guilt removes the pr

esumption of innocence and
r epla ces it with a presumption of g uilt, the accused, as the appel lant, has the burden in this

court o f i llu strating why the evidence is insufficient to support the verdicts returned by the

trier of fact. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). This court will not disturb a verdict of g uilt due to thesufficiency of the evidence unless the facts contained in the record are insuf ficient , as a mat ter of la w, fora rationa l trier of fact to find that the accused is guilty beyond a reasonable doubt. Id

.

Under

Tennessee Code Annotated section 39-17 -417, it is an offense to sell coc aine knowing ly. Tenn. Code Ann. § 39-17-417 (a), (c) (1991). The jury heard the testimony of Carl Hay es and Officers Clausi and Brown, and it obviously accredited these witnesses. In par ticular, Hayes testi

fied that he purchased from the defenda nt mate rial which chemical analysis proved to be cocaine. There was
no evidence to contradict this testimony, and the testimony was corr obor ated by Clausi and Brown. The ev idence is clearly s ufficient to support the guilty verdict.

II. Character Evidence .6 In his next issue, the defendant asser ts that the trial court erred when it admitted into evidence the defendant’s tape-recorded stat ements thathe did not want any “more indictments.” Prior to trial, the defendant moved to ex clude th e portion of the surveillance tape i n which the defendant talks about a n indi ctment. The trial court found that the chal lenged evidence was relevant on the iss ue of casual exchange and ov erruled the defendant’s motion.

Tennessee Rule of Evidence 403 authorizes the exclusi on o f even relevant evidence if “its probative v alue is substantially

outweighed by

the danger of unfair prejudice, confusion of the i ssues, or misleading the j ury, or by considerations

of undue delay, w aste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid. 403. Under rule 404, character evidence is generallyinadmissible “for the purpos e of proving action in c onformity with the character

or trait on a particular

occasion.” Tenn. R. Evi d. 404(a). The defendant
asse rts that the proof about an existing indictment violates r

ule 404(a) because i t suggests that the def endant is a drug de aler and, for that reason, l ikely to ha ve committed the offense on trial. Howev er, rule 4 04 (b) provides that ev idence of “other crimes, wrongs, or

acts” may be admissible for purposes other than to show that the impugned person acted in c onformity with the

b ad character trait. Under rule 404(b), such evidence may be admissible if the trial court, after a jury-out hearing, determines that “a material issue exists other than conduct conforming with
a character trait” and that the probativ e value is not outwei ghed by the danger of unfair prejudice. Tenn. R. Evid

. 404(b). The comments to section 404 illustrate that the “other” materia l issue s that could support the use of the e vidence include “identity (incl udi ng motive and common scheme or pl an), intent, or rebuttal of accidentor mistake.” Tenn. R. Ev id. 404, Advisory C

omm’n Comments. The trial court admitted the evidence based upon its findi ng that it was probati ve on the issue of casual exchange and that it was not unduly prejudicial.

Tennessee Code An no tated section 39-17-418 establishes a Class7

A misdemeanor offense where a p ers on “knowingly possess[es] or casually exchange[s] a controlled substance.” Tenn. Code Ann. § 39-17-418(a), (c) (1997). Section 39-17-419 allows the trier of fact to infer from the “amount of a controlled substance ... possessed by an offender, along with other relevant facts surrounding th e arr est , that the controlled substanc e ... [was] possessed w ith the purpose of selling ....” Tenn. Code Ann. § 39-17-419 (1997) (emphas is added). Also, this section a llow s an inferenc e “from circumstances indicating a casu al exchange among individuals of a small amount of a controlled substance ... th at the controlled substance ... [was] possessed n ot with the purpose of selling or otherwise dispensing in violation of the provisions of § 39-17-417(a).” Id . (emphasis added).

It is clear that the purpose of the accused in possessing or exchanging
a controlled substance is one of the key dynamics in determining simple possession
or casual exchange. Obviously, “pur pose” is closely related

to intent. As such, the trial court’s basis for admitting the evidence is within the purview of the “ other ” material purposes for character evidence as those purposes are sugg ested by the Advisory Commissi on Comments to section 404.

H owever, we cannot discern how evidence about the defendant’ s indictmentswould be probative of casual exc hange issues. If

the proof were offered to show that the defendant was aware of the unlawfulness of selling to Mr. Hayes, the obvious response is that even a casual exchang e is unlawful. See Tenn. Code Ann. § 39-17-418 (a), ( c) (1997). The defendant’s furtive behavior is just as suggestive of a conce rn that he would be charged w ith a misdemeanor under section 39-17-418 as it is that he would be charged wit h a sectio n 39-17-4 17 felon y. If the proof were offered in order t o i mply that the outstanding indictment was the result of drug offending and that the fact of a prev ious offense or

offenses belies a claim of casual excha nge on October 8, 1996, the effort again fails because the re is no proof that the subject of the outstanding indictment was drugs or that, if drugs, the ind ictment was not based upon a c asual-exchange misdemeanor. In rea lity ,1 We have reviewed this court’s recent decision in State v. S teve Edward Houston , No. 01C01-9711-CC-00510 ( Tenn. Crim. App., Nashvil le, Oct. 28, 1998), and find it disting uishable from the present case. I n Steve Edward Houston , this court was rev iewing the trial court’s refusal to sever four counts alleging drug transactions. In determining whether evidence of one offense would be admissible upon a t rial of the others pursuant to Rule of Criminal Procedure 14(b)(1), the c ourt assessed the proof in each o f the four counts and found a “distinctive desi gn common among the four occurrenc es” which belied the defendant’s claim of casual exc hange. Steve Edward Houston , slip op. at 9. The denial of severance was affirmed. In the present case, the tr ial court was unaware of the circumstances of the outstanding indictment(s) and could not assess the relevancy of this proof in relation to casual exchange issues.

8 the state’s c laim that th e evidence is probativ e of a non-casual exchange i s an artiface to show that the de fendant is a m an who, because of his past drug-d ealing, is likely to hav

e sold drugs on the date in q uestion. The trial court erred in basing admissio n on this t heory. 1

On the other hand, we hold this error was har mless. Tenn. R. Evid. 103(a) (no error committed in r ulings on excluding

eviden ce “u nless a substantial right of the party is affecte d”); Tenn. R. Crim. P. 52( a); Tenn. R. App. P. 36(b). It is unlikely the error

affected the verdict. The state presented a strong case in which
a drug sal e was narrated by a w itness-participant w

hose testimony was corroborated by two experienced police office rs . The state confiscated the contraband and used it as evidence. The defendant’s presenc e at the scene was firmly established. We see no possibility that the use of the ev idence “affected the result of the trial on the merits.” Tenn. R. Crim. P. 52(a).

III. Rule 608 Issue . A. In the defendant’s next issue, he as serts that t he tr ial court erred in admitting, over his objection, Officer Brown’s testimony that Carl Hayes had a lways been truthful with the polic e department.
Tennessee Rule of Evidence 608 prov ides, in part:9 (a) ... Th e credibi lity of a wit ness may b e attacke d or suppo rted by evi dence in the form of opinion or reputati on, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) the evidence of truthful character is admissible only after the character of the witness for truthfuln ess has been attacked. Tenn. R. Evid. 608(a).

Withou t ques tion, Hayes’s credi bility was attack ed through the defendant’s cross-examination w hich explored Hayes ’s prior convicti on, his recent re-offendi ng, his possible paternity of an illegitimate

child whom he did not support, his incarceration at the time of the testimony, and his possi ble mercenary and/or self-servingreasons for participating in the sting operation. The defendant’s intent in this cross-examination is confirmed in his final argument, in which Hayes’s lack of credibility w

as presented asa key component of the defense. Accor dingly, both conditions of rule 608(a) hav e been satisfied.

B. The defendant also complains that the state failed to lay an adequate foundation for Brown’s opinion or statement of re putation. The defendant relies upon State v . Du tton , 896 S.W.2d 114 (Tenn. 1995). In Dutton , the defense was not allowed to present as a witness the grandfather of the rape victim to testif y t o the victim’s badcharacter for truthfulness. Dutton , 896 S.W.2d at 117. At a jury-out hearing, the trial court de termined that the defense had laid no foundati on for the grandfather’s knowledge of the “victim’s general reputation for telling the truth.” Id

. Indeed, the grandfather did not claim to be familiar with the v ictim’s reputation for truthfulness in her community. Id . However, our s upr eme court held that the trial court erred “in refusing to admit the testimony of the victim’s grandfather as to h is opinion of the character of the victim for truthf ulness.” Id .at 118.

Although the supreme court ruled that the trial court found an insufficientfoundation to support repu tatio n testimony, it found that a sufficie nt foundation was es

tablis hed for op inion te stimony . When the for m of a ttack i s through reputat ion evi den ce, the attacking party must establish the second10

witness’s basis for knowing the various components of the first witness’s reputation

. With respect to opinion evide nce, it must be shown that the opining witness is personally familiar with the attack ed witness’s characte r; however, the use of opinion evidence does not require a showin g that the opining wi tness knows the primarywitness’s reputat ion in the latter’s community. The critical basis of knowledge of the opinion character witness is a “personal impression of the primary witness’s character for truthfulness.” Id

.

The grandfather’s testimony tha t he had been aro und the victimwitness on weekends for a number of years established hi s personal familiarity with her character for tr uthfulness. The high court ruled tha t the gran dfathe r should h ave been allo wed to test ify via opin ion testi mony.

Likewise, the record in the p re sent case demonstrates that Officer Bro wn was fami liar with Carl Hayes. Brown had worked with Hayes in Hayes’s capacity as an und ercove r operative fo r the department in other drug cas es. Through his testim ony, Brown evinced a personalacquaintance and familiarity with Hayes. As in Dutton , an adequate foundatio n for opinion testimony was establis hed. The re was no err or in allowi ng Brown’s t estimon y.

IV. Rule 609 Issue .

The defendant’s final issue is the trial cou rt erred in ruling that the defendant could be impeached as a witness, had he testified, via a prior Williamson County conviction for sale of cocaine that was r endered on April 10, 1997.
Subject to certain conditions for admi ssibility, Tennesse e Rule of Evidence 609 authorizes the use of proof of a w itness’s prior

convictions in order to attack the witness’s credibility. Tenn. R.Ev id . 609(a). One condition r equires that the prior crime be either a felony or a crime involving dishonesty or false11

statement. Tenn. R. Evid. 609(a)(2). In addition, r egardless

of whether the crime involves dishonesty or

false statement, State v. Jerry Lee Finch , No. 02C01-9309- CC-00224, slip op. at 4-5 (Tenn. Cri m. App., Jackson, 1995), perm . app . denied (Tenn. 1995), t he tria l court mu st determ ine wheth er the “co nvictions ’s probat ive value on credibility outweighs its unfairprejudicial effect on the substantive issues. ” See Tenn. R. Evid. 609(a)(3). The risk of unfair prejudicial effect is hei ghtened when the prior conviction is for an offense that is the same as, or similar to, the offense on trial. State v. Farmer , 841 S.W.2d 837, 839 (Tenn. Crim. App. 1992). The tr ial court must assess thesimilarity betw een the prior crime and the cri me on trial, and then the court mus t assess the relevance the prior crime has to the i ssue of credibili ty. Id

. “The standard is not whether there is any

prejudice to the defendant byallowing the State to use the prior conviction for impeachment, but whether the possible prejudice is outweig hed by the probative v alue of the evidence asto the def endant’s cr edibility as a witness.” State v. Roberts , 943 S.W.2d 403 (Tenn. Crim. App. 1996), perm . app . denied (Tenn. 1996).

In reviewing the trial co u rt’s determination, this court “does not reevaluate w hether the probative value of the . . . prior convictions outweighs th e possi ble prejudicial effect it might have had. We only evaluate whether the tria l j udge abused his discretion. . . .” Id ; see also State v. Harris , 839 S.W.2d 54, 66 (Tenn. 1992).

In reviewing the t rial court’s exer cise of discretion in the pr esent case, we readily d iscer n the similarity of the pr ior crime to the crime on t rial. Subject to possible variations for the amount of cocaine sold, the crim es are identical. Both crimes resulted in convictions for the sale of cocaine. “However, the fact that a prior conviction involves a simil ar crime for which the defendant is being tried does not automatically require its excl usion.” State v. Robert Harrison Blev ins , No. 03C01- 9606-CC-00242, slip op. at 10 (Tenn. Crim. App., Knox ville, May

23, 1997). “[T]he trial court must analyze the prior conviction an d the off ense on trial to determine12

whether the conviction’s proba

tive value on credi bility

is outweighed by

the danger of unfair p rejudice on the sub stantive issues.” Id

. In the present case, the court concluded that the probative value w eighed heavier in the bal ance. For the reasons explained below, we hold that this discretionary decision should not be disturbed.

In reaching this conclusion, we first recognize that prio r convictions of crimes of d isho nesty have “greater weight to their pr

obative value regar

ding credibility.” Id . For instance, prior convictions based upon theft crimes have high value as impeachment evidence. See, e.g. Robert Harrison Blev ins , slip op. at 10; Phillip S. Roberts , slip op. at 7-11; State v Miller , 737 S.W.2d 556, 559-60 (Tenn. Crim. App. 1987); State v. Hardison , 705 S.W.2d 684, 686 (Tenn. Crim. App. 1987).

Although this court has held that “[p]ossession of marijuana does not involve dishonesty,” State v. Baker , 625 S.W.2d 724, 728 (Te nn. Crim. App. 1981), overruled on other grounds , State v. Holt , 691 S.W.2d 520, 521 (Tenn. 1984); see also State v. Tommy Lee Hill, Jr. , No. 02C01-9212-CC-00285, sli p op. at 2 (Tenn. Crim. App., Jac kson, Dec . 1, 1993 ), we have held otherwise when the impeaching conviction is based upon a sale of controll ed substanc es. Sta te v. Gibson , 701 S.W.2d 627 (Tenn. Crim. App. 1985). In Gibson , a pre-rule case, a pri or conviction forselling d rugs was

allowed t

o imp e ach the defendant-witness in a drug-sale prosecution. This court said, “The ve ry natur e of the act of dealing in drugs is indicati ve of dishonesty. . . .” Gi bson , 701 S.W.2d at 629. T he court based this conclusion up on its ob servation that drug deal ing “express[es] . .. the design and determination to violate the law.” Id

.

Although the defendant is correct wh en he argue s that admitting all convictions

which reflect a desig n to viol ate th e law would embrace virtually all convictions

which are based on mental states of knowingne ss or inten t, we belie ve the act of drug dealing is sug gestive of dishonesty because the dealer is engag ed in a clandestine commercial enterprise which is carried out deceitfully beyond the2 We infer the tack the defendant would have taken had he testified

based upon his final argument to the jury wherein he a rgued that the state had not proven that the defendant sold the crack cocaine to Hayes. 13 scrutiny of society’s institutional watchdogs such as health code enforcers, licensing authorities, and taxing agencies. See State v. Ronald E. Tomes , No. 03C01-9612- CR-00477, slip op. at 8-9, n.4 (Tenn. Crim. App., Knoxville, Aug. 20, 1997); see also Drug Money Launde ring: Hearings on Pub. L. N o. 99-570 Before the Senate Committee

on Banking, Housing and Urban Affairs, 99th Cong. 1st Sess. 11, 34-35 (1985) (sta te ments of Richard Wassenaar, Asst. Commissioner for Criminal Investigations, Internal Revenue Service, and Willi am V on Raab, Commissioner, U.S. Customs Service) (commenting upon significa nt IRS investiga tive time devoted to tax-evading drug traffickers and the large amounts of income tax r evenues that go uncollected from illeg al drug business).

Although the mere

possess ion of a

controlled substance for personal
use may not involve dishonesty for purposes of rule 609, the dishonesty and deceit implicit in the illegal sale of drugs causes the co nvictio ns based upon such illegal sales to be valuable as impeachment evidence. See State v. Ronnie Roberts , No. 02C01-9502-CR-00049, slip op. at 10-12 (Tenn. Cr im. App., May 20, 1996), perm . app . denied (Tenn. 1996); see also State v. Tune , 872 S.W.2d 922, 926-27 (Tenn. Crim. App. 1993) (within tr ial court’s discreti on to det ermine that felony drug convictions

were admissible to impea ch defendant’s credibility as a witness in a homicide case).

Aside from the dishonesty aspect of the crime underlyi ng the prior conviction, the value of the impeachment evid ence is also increased when the
c redibility

of the defendant as a witness is “an important issue.” Robert Harris o n Blevins , slip. op. at 10 . W hen the d efenda nt makes his credib ility a n imp ortant issue, such as by “denying any wrongdoing and asserting legitimate conduct,” Id ., this court is “not inclined to question the trial court’s allowing . . . the convictions for the purpose of impeachment.” 2 Id . We note that Blevins, who w as prosecuted for14

burglary and vandalism, was pr

operly impeached with prior convictions for burgl ary, larceny and robbery. In Phillip S. Roberts , this court noted that the defendant in an automobile burglary and attempted the ft case might

have been expected to “attempt to convince the jury that he had some int ent other than tocommit a felony or theft, such as to joyride, a misdemeanor . . . .” Phillip S. Roberts , slip op. at 10. In such
a situation, which is clearly analogous to the present cas e, the Roberts court found the defendant’s credibility to be a “critical issue.” Id . “Accordingly, ” the court said,

“ it was within the t ri al court’s discretion to allow the State to use the defendant’s prior convictions [breakin g an d entering and larceny] to impeach his credibili ty as a witness [in a burglary and attempted theft case].” Id

.

Based upon the princ iples disc ussed ab ove, we find Roberson’s prior convicti ons for selling cocaine w ere highly probativ

e because (1) they inv olved dis honesty

and (2) his credibili

ty, had he testified, woul d have been an importan t issue in the case. In Robert Harrison Blev ins and Phillip S. Roberts , in which the crimes underlying the prior convictions were virtually identica l to th e offenses on trial, this co urt defe rr ed to the trial court’s di scretion in weighi ng unfair prejudicial effect against p robative value because of the concurrence of the dishone sty aspect of the prior conviction and the importance of the defendant’s credibi lity had he been
a witness. We are constrained to do li kewise in t his c ase. The trial court heard t horough arguments concerning the use of the defenda nt’s prior drug-sale conviction for impeachme nt purp oses and thoughtfully deli berated the question. We find no abuse of discretion.

The judgment of the trial court i s affirmed.

________________________________ JAMES CURWOOD WITT, JR., JUDGE
CONCUR:15

____________________________________ GARY R. WADE, PRESIDING JUDGE

____________________________________ THOMAS T. WOODALL, JUDGE